AOS from V W P overstay

[northern member 0]

Hello to all,

This is my first post as a new member and I just want to start by thanking all of the contributors for offering so much useful and well researched information. I cant tell you how reassuring and educational it is to read about the ongoing endeavors of people who are in similar (or identical) situations and to monitor their progress and their achievements.

I am hoping to get some feedback from the community regarding the current trend of approvals and denials for applicants of the VWP who are trying to adjust to LPR by way of marriage to a USC, specifically if the alien is an overstay and out of status. My wife and I have been researching this topic intensely for some time and are trying to reach a place whereby we feel comfortable making the application and can have a measured assurance of "success", we know there are no guarantees.

The overstay in this instance is approximately 5 years. Aside from the overstay there are no other negative factors affecting the case and we have been happily married for going-on 3 years. We have absolutely no reservations about being able to convincingly substantiate a bona fide marriage, we are just very anxious about the ability of a person to adjust who has had such an extended overstay, given the current climate and seeming lack of uniformity of this issue nationally.

We have familiarized ourselves with all of the headline cases that have brought this debate to the forefront of discussion and understand the logic and reasoning as to why a VWP participant is not able to contest a deportation order. Our concerns are boiled down to making the very best, informed decision we can that will yield the most likelihood of success. To achieve this we feel answers to some questions would be invaluable.

As Texas is in the Fifth Circuit and hosted the case of McCarthy v. Mukasey, 555 F.3d 459 (CA5 2009) and being as though we are located in Texas (and would almost certainly be assigned to the Houston USCIS field office) is it a prudent move to make the application at this time from this location or seek to move to an area that has not demonstrated such rulings? Does anyone have experience in dealing with the Houston chapter of USCIS, in general or particularly in a VWP AOS case?

Now we are well aware that just because a particular field office may be located in a court zone that has previously ruled against VWP overstay AOS cases, that that doesn’t mean that all such cases will be. We further appreciate that there seems to be a great deal of individual discretion on the part of the interviewing officers, who seem to have the ability to administer local protocols that may differ region to region (or even office to office), but to get some feedback on a particular USCIS field office’s recent track record would been very assuring. Obviously we wouldn’t consider applying to San Diego any time soon, would love to know if there are any other offices that have made similar statements or acted accordance with San Diego’s policy.

In researching this issue we came across the minutes of the meeting between USCIS and the AILA (can be found here: My link) dated April 7th 2011 in which the AILA presses the USCIS for specific guidance on how they intend to process the cases of VWP entrants who overstayed and are trying to adjust by way of marriage. The response seems encouraging, though I don't know what the final part means – what is an AFM?:

“AILA requests that USCIS immediately provide guidance to the field clarifying that an alien admitted under the Visa Waiver Program may adjust status as an immediate relative notwithstanding the filing of the Form I-485 adjustment application after the expiration of the VWP alien’s period of admission.

Response: All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order. Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for potential beneficiaries who have been ordered removed under INA section 217. We are drafting final guidance including an AFM update on this topic we expect to issue soon. “

From this it would suggest that there is going to be an actual, definitive position adopted by the agency and that that position will be uphold and practiced across the board, but who knows which way it will go, definitive approval or affinitive denial. From some of the members cases discussed on VJ it seems that even the cases whereby active removal proceedings weren’t in effect at the time of submitting an application for AOS, there were still some examples of USCIS taking their time to review their policies before committing to a final decision. In one case the VJ member was successful at adjusting but I think it took some 8 months to actually receive confirmation. I hope this is to be the future direction of such a new rule and not the exception.

So to summarize, what do people think about the likelihood of success at filing in Houston right now? Would it be better to move and apply somewhere else? I know of two other people in the same position (one similar and one identical), the first was approved and received his LPR after overstaying VWP some 14+ years (approval was in early 2010) and the second is in the process of waiting for an interview date as we speak – VWP overstay 7+years). Both cases were submitted to the Los Angeles field office. Moving to LA for this purpose would be a consideration but a very difficult one.

I know no-one has a crystal ball but any feedback would be greatly appreciated. My wife and I feel somewhat paralyzed and overwhelmed by the burden of weighing up all the conflicting information and terrifying stories when we have so much to lose. The only positive thing we take any security in is when we read of the successful cases of members of this group who have walked the walk and can move-on with their lives and embrace their new freedom. We want so desperately to do the same.

Any feedback or insight will be appreciated more than we could express. Thank you in advance for any advice you may have.

[Harpa Timsah 13,258]

Looks like you've done a lot of homework The issue you bring up about VWP overstays seems to no longer be a problem. Recently (months ago now) a memo was issued that stated that USCIS offices do have jurisdiction to approve AOS from VWP overstay. After that was issued, the district that was putting people on indefinite hold (Circuit 3) started to approve cases that has been waiting. I do not know what happened to any of the cases in San Diego that had been denied.

Even during this problem, Texas seemed to be a "safe" state. Now that the memo has been sent out, the whole problem is irrelevant.

So in short, yes, now would be a good time to file for AOS. I think chances of success will not be affected by VWP overstay. Good luck.

P.S. AFM is Adjudicator's Field Manual.

[northern member 0]

Looks like you've done a lot of homework The issue you bring up about VWP overstays seems to no longer be a problem. Recently (months ago now) a memo was issued that stated that USCIS offices do have jurisdiction to approve AOS from VWP overstay. After that was issued, the district that was putting people on indefinite hold (Circuit 3) started to approve cases that has been waiting. I do not know what happened to any of the cases in San Diego that had been denied.

Even during this problem, Texas seemed to be a "safe" state. Now that the memo has been sent out, the whole problem is irrelevant.

So in short, yes, now would be a good time to file for AOS. I think chances of success will not be affected by VWP overstay. Good luck.

P.S. AFM is Adjudicator's Field Manual.

Harpa

Thank you so much for the update! We are very relieved to find that this issue seems to have been comprehensively addressed. The uncertainty of our decision was killing us! Was the memo you refer to made publicly available, if so would you happen to know where I may find a copy of it?

Thank you again for your advice and insight.

Best regards!

[Harpa Timsah 13,258]

You quoted the memo in your own post Here is a post and discussion here on the topic

http://www.visajourney.com/forums/topic/304622-uscis-have-finally-publicized-their-vwp-policy/

I think there are various links in that thread, but you seem to have done extremely well on your own.

[northern member 0]

You quoted the memo in your own post Here is a post and discussion here on the topic

http://www.visajourney.com/forums/topic/304622-uscis-have-finally-publicized-their-vwp-policy/

I think there are various links in that thread, but you seem to have done extremely well on your own.

Harpa

Hahaha! I realize, now, that the thread I was quoting originally was indeed the same one you were referencing. Thanks for the clarification. Thanks also to the link to the other VJ active discussion on this topic. A lot of people waded into that conversation. This issue seems to be one that affects a great number of people. I hope all those invested have a fruitful outcome.

Thanks again. Please keep posting any updates or advances, they are truly appreciated!

[Team SD 0]

Hey guys,

Thought I would share this with you.

We had our AOS interview today at the SAN DIEGO office.

The Interview was going great and the IO was happy to approve us until... She saw that although we married while under the Visa Waiver Program ( two months after admission), we filed for AOS after the visa waiver had expired (less than 2 months, due to awaiting birth certificates and tax returns, paperwork for package). Thus, it is classed as an "Overstay" and San Diego had a denial policy for this as you had to have filed BEFORE the 90 day period had expired.

We were devastated and explained that Immigration Lawyers had informed us (at a cost), that due to new USCIS guidelines issued in April 2011, it was okay to file the i-485 after VWP overstay, as long as it was within 90 days of the expiry of the VWP.

But to her credit, the IO went off to consult, as the she said the rules may had changed.

When the IO returned, we were told that the she would now have to escalate our case to the director level for review and a recommendation for approval from her, but they would weigh up the positives vs. negatives and to our credit we had many positives (No criminal history etc) and the only negative being the brief VWP overstay.

The decision could take between one week to three months and the Director could deny us.

[northern member 0]

Hey guys,

Thought I would share this with you.

We had our AOS interview today at the SAN DIEGO office.

The Interview was going great and the IO was happy to approve us until... She saw that although we married while under the Visa Waiver Program ( two months after admission), we filed for AOS after the visa waiver had expired (less than 2 months, due to awaiting birth certificates and tax returns, paperwork for package). Thus, it is classed as an "Overstay" and San Diego had a denial policy for this as you had to have filed BEFORE the 90 day period had expired.

We were devastated and explained that Immigration Lawyers had informed us (at a cost), that due to new USCIS guidelines issued in April 2011, it was okay to file the i-485 after VWP overstay, as long as it was within 90 days of the expiry of the VWP.

But to her credit, the IO went off to consult, as the she said the rules may had changed.

When the IO returned, we were told that the she would now have to escalate our case to the director level for review and a recommendation for approval from her, but they would weigh up the positives vs. negatives and to our credit we had many positives (No criminal history etc) and the only negative being the brief VWP overstay.

The decision could take between one week to three months and the Director could deny us.

Wow, thank you for sharing. Im very sorry to hear of your situation, that must be so disappointing. It just seems that the San Diego USCIS cant get its act together! Im very surprised by your story as the directive you speak of was very deliberate in separating approvable AOS cases from VWP and those that werent, you clearly fell into the former.

I know its hard to think of the consequences of a denial, but hang in there, it sounds like you have a fighting chance. With a little luck, good sense will prevail and the IO's recommendation will stand for something. I wish you the very best of luck. Keep up appraised of your progress!!